IT rules fail constitutionality test
A lot of ground has been covered since February 25, when the 2021 rules on information technology (intermediate guidelines and code of ethics for digital media) were notified. IT rules have been promised as a panacea for the myriad of damage done by social media platforms, digital media and online video streaming providers. A joint press release issued the same day by the Department of Electronics and Information Technology and the Department of Information and Broadcasting said they are “a good mix of liberal touches with a cadre gentle self-regulation ”. Such assertions have not amused legal experts, policy professionals, industry bodies and even United Nations special rapporteurs, as its provisions infringe the rights and freedoms of Internet users. For the sake of brevity, a computer rules analysis has been avoided because it has been published previously (‘Liability with a cost‘, IE, February 26).
Over the months, many of the concerns expressed have found their way into the courts. Today, there are more than 18 petitions challenging the constitutionality of computer rules in various high courts, with interim orders in three cases. These court decisions contain a clear recognition of the dangers posed by computer rules and merit further examination. The first order of importance was issued on March 10, 2021 by the High Court of Kerala in a petition filed by LiveLaw Media, an online publisher of legal news and analysis. He prohibited any action against the applicant. Although this is a modest victory, the order effectively remains a regulation framed by the central government. Such protections by the courts are not usually made, preferred only in cases where obvious prejudice is evident.
A more thorough ruling was issued by the Bombay High Court in the bludgeoning petitions filed by the entity operating the digital news platform, The Leaflet, and journalist Nikhil Wagle. By an order of August 14, 2021, the court suspended two fundamental provisions of the IT rules that govern online news media platforms. The ordinance neutralizes sub-rules (1) and (3) of Rule 9 which required compliance with a “code of ethics” which would be applied by a three-level structure chaired by the Ministry of Information and Broadcasting. The order reads as an objective determination, fairly taking into account the government’s arguments as well as the doctrine of constitutionality in initially presuming the validity of the computer rules. However, this is ruled out because the court finds that the provisions relating to media governance go well beyond the allocation permitted by the main provisions of the law on information technology. The court finds that conformities to the “code of ethics” either do not have the force of law or have a separate statutory framework, as under the law on cable television networks (regulation). Beyond these technical details, the greatest danger of computer rules comes to light when the court observes that “people would be deprived of freedom of thought and would feel suffocated to exercise their right to freedom of speech and expression, s ‘they had to live in the present day of internet content regulation with the code of ethics hanging over their heads like the sword of Damocles. “
The decision garnered well-deserved praise not only from the public but also from the Madras High Court. By issuing an order on September 16, 2021 in the clubbed petitions filed by musician TM Krishna and the Digital News Publishers Association, the Madras High Court upheld the pan-Indian effect of the earlier Bombay High Court ruling. Therefore, today computer rules are largely inapplicable to digital news media. However, the scope of applications to the Madras High Court is broader. They are asking for additional remedies for users of social media platforms who are classified as intermediaries. Here, the court notes that “there is a substantial basis for the applicants’ contention that Article 19 (1) (a) of the Constitution may be infringed in the manner in which the rules can be applied in a coercive manner to intermediaries ”. He further observes that “there is a real apprehension, as the petitioners suggest, that a wink or nod from appropriate quarters could make the platform inaccessible to a citizen”.
A collective reading of these three provisional orders is the expression of a judicial consensus. According to the courts, computer rules conflict with our constitutional freedoms in two clear ways. First, they lack legal support and second, they seriously undermine the freedom of speech and expression of Internet users. This has resulted in an effective restriction of the provisions against online news portals and there is a real possibility that a similar conclusion could emerge with regard to social media platforms. The resulting results are particularly important given that there is a common cause between the interests of citizens and government that requires us to look beyond litigation to adopt political determinations based on rights and rights. But this is unlikely to happen.
In view of the multiple challenges before high courts across India, the Union government has filed a transfer request with the Supreme Court. This would effectively transfer and consolidate all existing challenges without serving “transparency, accountability and user rights,” as the press release claims. To be frank, IT rules accomplish the opposite of these ostensible goals. Over the next few months, if not years, the lawsuits will drag on, taking resources away from the creation of governance frameworks that we urgently need. While the best solution is a reminder of IT rules, a more cynical but predictable forecast is that of lingering indeterminacy and regulatory stasis.
This column first appeared in the paper edition on September 30, 2021 under the title “Against the rules of the game”. The writer is executive director of the Internet Freedom Foundation and a member of Ashoka.